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From: Lawson, Joel (OP)

Sent: Monday, February 4, 2019 12:21 PM

To: Holliday, Bertha G. (SMD 5E07) <>
JAM DOUNG (#19887)

Good afternoon, Commissioner Holliday – thank you for the email. I will go through your
points one by one, to make sure that I provide a response to each.

 what should and should not be the focus of the required Agreement between
Neighbors and Owners?
 the appropriateness of discussion of agreement/disagreement with items related to
USE that have been approved by BZA -- e.g., right for restaurant to include use of the
2nd floor, right to have a Sidewalk Cafe and Rooftop Garden (with final approval by
DDOT as these involve public space), etc.
While I would not instruct an ANC or a neighborhood on what to discuss at a community
meeting, I believe that you are very much correct that the Board of Zoning Adjustment gave
instructions that the record is only left open for community discussion regarding
conditions of use for the restaurant, including on the first and the second floor. The BZA as
a whole stated that they were satisfied that the applicant had met the test for the variance
for the use of both floors of the building for restaurant use, and that this would not be part
of any further deliberations by them.

By Rooftop Garden, I am assuming that you mean the restaurant terrace on the second
floor. That was part of the BZA’s use related discussion for the second floor. However, it is
within my understanding of the BZA’s discussion that they would welcome community
discussion regarding any conditions related to the use of this space.

Any proposal for a sidewalk café, however, is essentially outside the scope of the BZA
approval. For that, the owner would need to have discussions with the DDOT Public Space

 modification of language regarding requests for approval from DDOT (e.g., loading
zone, customer drop-off zone, Residential Parking Permits, etc.) Such issues were a
major concern of neighbors.
This is a tricky one. Typically, many of the issues raised in earlier discussions would be
considered outside the scope of normal BZA consideration, and are under the authority of
DDOT. It would be up to you, the community and the owner, as part of any agreement to
decide if you wish to include them in your agreement. However, such conditions, if related
to public street parking, could be outside the scope of the BZA to enforce. As such, the
owner could be agreeing to conditions that they cannot fulfill; if DDOT does not allow them,
the owner might then have to go back to the BZA to request a modification to the Order to
remove the conditions. Instead, the community could include conditions related to the
applicant making “good faith efforts” to work with DDOT, or instead of making them
conditions of the BZA approval, the community, through the ANC, could come to a separate
agreement with the owner outside the scope of the BZA consideration.

 whether or not the Agreement report should include mention of those provisions
on which consensus could not be reached
The BZA will be most interested, I think, in conditions for which there was general
agreement but they are experienced enough to know that is not always possible. In the
end, it is the Board’s decision what to include as conditions of approval, so if the
community felt it was important to include mentions of conditions that were not agreed to,
that would be your decision and I don’t think that would be outside the scope of what the
BZA asked for.

 who should be the signers of the document (e.g., designated representatives of

owners, neighbors, ANC5E)
Typically, because the ANC is given great weight, the Board will want to be sure that any
conditions are agreed to by the applicant and the ANC. Having directly impacted neighbors
indicate agreement would also be important.

 any other suggestions you might have that might promote common ground,
consensus, and the drafting of a solid Agreement between neighbors and owners.
I don’t think so, other than the obvious suggestions that any conditions need to be
enforceable, should be reasonable, and should relate to the relief requested by the

You seem to have this very well organized, so OP and the Board will be interested in seeing
the results of the community discussions.

<image001.png> Have a good day.

Joel Lawson • Associate Director, Development Review

DC Office of Planning